Full .pdf version (with references)
Consular protection and diplomatic intervention: International law duties to provide access to remedies for human rights violations against Canadians abroad
Submission to the Standing Committee on Foreign Affairs and International Development,
Parliament of Canada
by Lawyers’ Rights Watch Canada (LRWC)*
12 March 2018
Drafted by Catherine Morris, LRWC’s UN Liaison Director, and edited by Gail Davidson, Executive Director of LRWC.
Table of Contents
1 Introduction and summary… 1
2 The variable impacts of Canada’s discretionary consular protection in selected cases… 1
2.1 Twelve hostages: Rescued, ransomed, died or murdered…. 1
2.2 Sixteen Canadians unlawfully jailed abroad including one child…. 2
3 Canada’s obligations to provide remedies: Treaties and customary international law.. 5
3.1 Grave violations of treaty-based rights of unlawfully detained persons…. 5
3.1.1 Canada’s treaty obligations to provide remedies for rights violations abroad…. 6
3.1.2 Rights of children including youth held hostage or unlawfully detained abroad…. 6
3.2 Customary international law: Violations of peremptory (jus cogens) norms…. 6
4 Recommendations to ensure the right of access to remedies…. 7
4.1 Implement international recommendations: Passing a “Protection of Canadians Abroad Act”… 8
4.2 Expand Canada’s definition of “trafficking” to include hostages for ransom… 9
4.3 Utilize complaint mechanisms provided by human rights treaties… 9
4.4 Take firm action to insist on consular access to protect all citizens including dual citizens… 10
4.5 Take leadership to improve global standards for consular protection… 10
References… 12
Introduction and summary
People from Canada and other countries are routinely deprived of their internationally protected rights through hostage taking and other unlawful actions outside their countries. Victims include human rights defenders, humanitarian workers, journalists, academics, business people and travelers. Some of the many Canadian victims are identified in Section 2 below. Lack of access to effective remedies, including consular protection and diplomatic intervention, has contributed to devastating consequences for victims and impunity for perpetrators. This report summarizes Canada’s international law obligations to ensure rights to life, liberty, freedom from torture, enforced disappearance and hostage-taking, and access to effective remedies when these rights are violated abroad (Section 3 below). Canada does not currently recognize consular protection or diplomatic intervention as the right of all Canadians subjected to grave violations of internationally protected rights. Instead, Canada provides consular services on a discretionary basis. The absence of human rights-based criteria for provision of consular services and diplomatic intervention has resulted in inconsistency, inequality, and discrimination and has exposed Canadians abroad to grave violations of rights without access to legal protection, oversight, or remedies. There is an urgent need to reform Canada’s laws and policies on consular protection and related issues to comply with Canada’s international human rights obligations and to prevent and remediate grave human rights violations against Canadian citizens and, where possible, permanent residents and persons with close Canadian ties. LRWC’s recommendations are found in Section 4.
Recommendations:
- Recommendation 1: That Canada guarantee Canadians the right to diplomatic intervention and consular protection when they suffer grave human rights violations abroad by enacting a “Protection of Canadians Abroad Act.”
- Recommendation 2: That Canada guarantee that it will not seek to control the peaceful efforts of a hostage’s representatives to secure release of hostages by threatening or initiating criminal prosecution.
- Recommendation 3: That Canada ensure that specialized consular services are provided to children subjected to hostage-taking or arbitrary detention, possibly by ensuring that they are specifically included in the mandate and services of the Vulnerable Children’s Consular Unit.
- Recommendation 4: That Canada implement all recommendations on consular protection arising from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.
- Recommendation 5: Ensure that Canadian law, policies and services protecting persons from human trafficking include situations of hostages held for ransom by expanding the definition of “exploitation” in Criminal Code S. 279.04.
- Recommendation 6: That Canada engage in diplomatic protection in all cases where fundamental rights of Canadians are gravely threatened or violated abroad, including the use of remedies available through human rights treaties to which Canada is a party.
- Recommendation 7: That Canada ensure that Canadian children subjected to unlawful captivity abroad have direct access to appropriate remedies of the UN Committee on the Rights of the Child by ratifying the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.
- Recommendation 8: That Canada ensure appropriate access by Canada and Canadians to remedies provided by the Committee on Enforced Disappearance by ratifying the International Convention for the Protection of All Persons from Enforced Disappearance (CED), including to its State and individual communication mechanisms (Articles 30 to 33).
- Recommendation 9: That Canada ensure its standing to petition the International Court of Justice about the failure by another States to allow consular access to Canadians, by ratifying the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.
- Recommendation 10: That Canada engage in diplomacy and support efforts to advocate State practice and international law reform on diplomatic intervention and consular protection that is consistent with customary international law for protection of international human rights, including revision of the VCCR.
